Two weeks to the expiration of the three months tenure of Walter Onnoghen as acting Chief Justice of Nigeria, there is growing disquiet over the failure of President Muhammadu Buhari to forward his name to the Senate for confirmation as substantive head of Nigeria’s judiciary.
The National Judicial Council had on October 6, 2016 recommended Mr. Onnoghen to President Buhari as successor to Mahmud Mohammed whose tenure was to expire on November 9, 2016.
But rather than immediately forward the name to the Senate for confirmation or reject the recommendation, the President on November 10 appointed Mr. Onnoghen to the office in acting capacity. That appointment will lapse on February 10 based on a constitutional provision.
As stipulated in Chapter 7, Section 31 (1) of the Constitution, “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”.
Chapter four of the same section states that; “If the office of Chief Justice of Nigeria is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding has resumed those functions, the President shall appoint the most senior Justice of the Supreme Court to perform those functions.
The Constitution further states in sub-section (5) of the same section that; “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appointment a person whose appointment has lapsed”.
From the foregoing, lawyers say that unless Mr. Onnoghen’s name is forwarded to the Senate and he is confirmed, he would cease to be the acting CJN from February 10. Mr. Buhari would also not be able to submit his name to the Senate as substantive CJN after that date and he would have to be replaced.
According to some legal practitioners, the failure of Mr. Buhari to forward the name of Mr. Onnoghen to the Senate, long after his recommendation, is dangerous for Nigeria and the judiciary in particular.
Speaking on the matter, shortly before the expiration of the tenure of the former CJN, a Senior Advocate of Nigeria, Sebastine Hon, described Mr. Buhari’s delay in processing the confirmation of Mr. Onnoghen as “scary, to say the least”.
“The name of Hon. Justice Walter Onnoghen, the next most Senior Justice of the Supreme Court, has since October, 2016 been forwarded to the President, who is expected, constitutionally, to forward it to the Senate for confirmation.
“Till this moment, Mr. President has not forwarded Justice Onnoghen’s name to the Senate for confirmation. This is scary, to say the least”, Mr. Hon had stated.
But hours after the said expiration of Mr. Mohammed’s tenure on October 10, the president appointed Mr. Onnoghen to fill the vacant position, as stipulated by the Constitution.
As the expected three months during which Mr. Onnoghen can act as chief justice draws near, stakeholders have been speaking on the implications of not submitting his name to the Senate.
Speaking on the development, Rotimi Oguneso, a Senior Advocate of Nigeria, viewed the president as “having a penchant for stirring up needless controversies”.
“This is where I find a problem with this government. It appears the present government has a penchant for stirring up needless controversies.
“The NJC has recommended Justice Onnoghen, who is the most senior judge to be the next CJN. What the president needs to do is to send his name to the Senate and it will come into being”, Mr. Oguneso said.
“The government has not told us; I am not aware of any situation or any disability on the part of Honourable Justice Onnoghen. He has already been recommended even to the substantive office, why make him acting in the first instance? That is where the controversy started.
“The Nigerian government right from the Obasanjo time, do not seem to like the collegial system of appointment; whereby it is the judiciary that has so much say on who becomes the Chief Justice. But the truth of the matter is that if they do not like it; why don’t they push for a constitutional amendment?
“The former President Obasanjo did express his reservations, that the executive doesn’t seem to have so much say; but I don’t see that as being correct. Because there is nobody who is appointed a judge whom the State Security Service will not have conducted an investigation upon. If the president has anything against a certain appointee, he should state it. Why not make it public?” Mr. Oguneso queried.
For another senior advocate, Samson Ameh, the situation is not one that cannot be remedied as the NJC still reserves a constitutional right to intervene.
“The NJC can still intervene and prolong the period, possibly. So as it is now, if the period of three months is to expire, I will recommend the intervention of the NJC to enable the president take the decision that is to be taken,” said Mr. Ameh who encouraged the presidency to ‘act in order to avoid a constitutional crisis’.
Another lawyer, Jiti Ogunye, also said that the situation should not degenerate into something worrisome as many Nigerians presume.
“The hysteria in town about the possibility of a doomsday that is looming; that once that three month clocks, then the judiciary will be thrown into a pandemonium, or a new CJN may then be appointed on a rotational bases; that doomsday prediction may not occur”, Mr. Ogunye said.
“Let’s apply the facts to that provision; the NJC currently is headed by this same acting CJN, so the NJC can exercise the power to say we want the present acting CJN to continue, and the president cannot override that recommendation,” he said.
Mr. Ogunye however queried the president’s silence on the matter.
“What this president has failed to do is to either forward his name to the Senate or, if he has any reason that is cogent and verifiable for not accepting the recommendation, he then consults with the NJC on that subject.
“The Third Schedule to the Constitution, in Part One, Paragraph 21 and 22, details the composition of the NJC and the powers of the NJC. Under those provisions you will see that the president is empowered to consult with the NJC on any matter pertaining to the Judiciary.
“So under that position that allows for consultation, the president or governor of a state, if he has any reservation, is obliged to consult with the NJC. And the president can have such an objection, because it’s not a rubberstamp.
“So what this president has not done, which a lot of people find objectionable and unacceptable is that he has not exercised his power regarding this matter, and I have serious objection to that kind of dilatory and lethargic approach”, said Mr. Ogunye.
He added that the constitutional position of the NJC is not without its own faults and that before the expiration of these three months, the presidency is not under any obligation to succumb to the recommended choice of a CJN by the council.
“Some people have said that the position of the presidency is merely a rubberstamp; he has no choice in the matter. I don’t think so. What I think rankles and is unacceptable is for the presidency not to act. The NJC is constituted in such a way that it is possible for somebody who is not desirable to be a CJN to emerge. What is the tradition here? The most senior.
“At that point of recommendation, other persons do not have a say. And being that the NJC in recent times has done certain things that people have found very objectionable. Indeed, the NJC did come out to defend the judges, some of whom are on trial now, only for them to backtrack when they saw the groundswell of public opinion against that kind of stands, in the face of overwhelming damming evidence in the public domain.
“So my opinion is that government has to act on that recommendation. If he has a reservation let the president disclose it. You can’t allow government business to be transacted on the basis of speculation”.
Mr. Ogunye lamented the repeated cases of delays in ensuring the confirmation of public office holders by the Executive arm of government, describing the development as a “questionable style of governance”.
“And I have questioned what is now becoming a style of governance. Magu was appointed acting chairman of EFCC and it took months, something that ought to take days, before his name was forwarded to the Senate for confirmation. You go to constitute a cabinet and it took about eight months. As we speak some heads of agencies, parastatals and corporations are yet to be established.
“Now that we are talking about the Judiciary, when the president knows that he has to exercise this power, why has he not done so, or if he has a reservation, why has he not approached the NJC in good conscience?
“And this is rife. For over three months, this debate has generated various dimensions, basically an ethnic dimension, regional dimension and a dimension of the allegation that the Executive arm of government wants to control the Judiciary”, Mr. Ogunye said.
Efforts by PREMIUM TIMES to get the presidency to comment on whether or not the name of Mr. Onnoghen will be sent to the Senate yielded no results.
The Special Assistant to the President on Media and Publicity, Femi Adesina, said he was not in a position to comment on the matter, since the President was on vacation out of the country.
The spokesperson for the Vice President, Laolu Akande, neither picked his calls nor called back when approached by PREMIUM TIMES. He also failed to reply to text messages.